FJLV and Child Support Registrar (Child support second review)

[2023] AATA 713

FJLV and Child Support Registrar (Child support second review) [2023] AATA 713 (5 April 2023)

Division:GENERAL DIVISION

File Number(s):     2022/7429          

Re:FJLV

APPLICANT

AndChild Support Registrar

RESPONDENT

AndZJZF

OTHER PARTY

DECISION

Tribunal:Member W Frost

Date:5 April 2023

Place:Canberra

Pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and makes a decision in substitution not to revoke the existing care determination for the Child. That is, the Tribunal finds that the Mother had 100% care of the Child from 31 May 2017.

...........................[SGD]................................

Member W Frost

Names used in all published decisions are pseudonyms. Any references appearing in square brackets indicate that information has been removed from this decision and replaced with generic information so as not to identify involved individuals as required by subsections 16(2AB)-16(2AC) of the Child Support (Registration and Collection) Act 1988.

Catchwords

CHILD SUPPORT – percentage of care – actual care – whether payee was providing actual care – whether payee received an overpayment in child support – whether no parent was providing actual care for the child – decision under review set aside and substituted

Legislation

Administrative Appeals Tribunal Act 1975 s 33

Child Support (Assessment) Act 1989 s 35, 49, 50, 50(3), 54A(1)

Child Support (Registration and Collection) Act 1988 s 96A(b)

Family Law Act 1975 s 11C(1), 62G

Cases

Frampton and La Ponder [2015] AATA 321

P v Child Support Registrar [2012] FCA 1398

Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562

Polec v Staker & Anor (2011) 253 FLR 339

Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Secondary Materials

Guides to Social Policy: Child Support Guide

REASONS FOR DECISION

Member W Frost

5 April 2023

INTRODUCTION

1. The Applicant, ‘FJLV’ (the Mother), and the Other Party, ‘ZJZF’ (the Father), are the separated parents of one child born in 2016 (the Child). In January 2017, the Child Support Agency (Agency) determined that the Mother had 72% care of the Child and the Father had 28% care of the Child.[1] The determination of the percentage of care is one of the requisite steps in assessing the rate of any child support payable by one parent to the other under the Child Support (Assessment) Act 1989 (Assessment Act).

   [1] Exhibit 1, pages 71-75.

2. From January 2018, based on the Father’s report to the Agency, it determined that the Father had 0% care of the Child and that the Mother provided 100% care from 30 May 2017.[2] That is, the Father did not at that time claim to have any care of the Child. However, in 2021, the Father contended that, from late 2016, the Child had been living with the Child’s maternal grandparents, and that the Mother had been living elsewhere. As a result, the Agency determined that both parents’ percentage of care of the Child was 0% from 31 May 2017, with effect from the date the Father notified it of the claimed change in the Mother’s care. This decision reduced the amount of child support payable by the Father to the Mother and therefore resulted in the Agency requesting the Mother repay the amount of $17,130.38. The Mother objected to that determination, which the Agency subsequently allowed, thereby restoring the earlier care determination that the Mother had 100% care of the Child from May 2017.

   [2] Exhibit 1, pages 76-85 and 271.

3. The Father applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) for review of the Agency’s decision. The AAT1 set aside the decision and found that there had been a change in care from May 2017. The AAT1 revoked the existing care determination that the Mother had 100% care of the Child and found that the Mother had 0% care. The Mother applied for review of the AAT1 decision by the General Division of the Administrative Appeals Tribunal (Tribunal).

   ISSUES

4. The issues for the Tribunal to determine in this proceeding are:

   (a)the percentage of care the Mother had of the Child;

   (b)should the existing determination regarding percentage of care be revoked; and

   (c)if so, from when should the existing determination be revoked.

   BACKGROUND

5. The relevant percentage of care determination for the Child, that the Mother had 100% care and the Father had 0% care, took effect from 5 January 2018.[3] That is because, on this date, the Father informed the Agency that he had not had any overnight care of the Child since 30 May 2017.[4] On 12 January 2018, the Mother confirmed that she had 100% care of the Child.[5] As a result of the Agency’s determination, and the other relevant factors considered to determine the applicable rate of child support, the Father was required to make child support payments to the Mother from 5 January 2018.[6]

   [3] Exhibit 1, T5, pages 76-85.

   [4] Ibid., page 271.

   [5] Ibid., page 276.

   [6] Ibid., pages 76-85.  

6. However, on 29 June 2021, the Father notified the Agency that, from 21 November 2016, over four years earlier, there had been a change in the Mother’s percentage of care of the Child from 100% to 0%, in circumstances where the Child was living with her maternal grandparents and not the Mother.[7] On 30 June 2021, the Agency informed the Mother that the Father had ‘told us that the care arrangements for [the Child] have changed’ and invited the Mother to discuss these claimed changes before a change was made to the child support assessment.[8] In July 2021, the Mother disputed the Father’s claim and contended that she continued to have 100% care of the Child and that they both lived at the same address with her father and his partner, that is, the maternal grandparents.[9]

   [7] Exhibit 1, pages 279-280.

   [8] Ibid., pages 140-141. 

   [9] Ibid., page 278.

7. On 1 February 2022, the Agency determined that there had been a change in the percentage of care for the Child from 31 May 2017 (not 21 November 2016 as initially claimed by the Father), such that, while the Father continued to have 0% care, the Mother also had 0% care of the Child.[10] This resulted in changes to the rate of child support payments required to be made by the Father to the Mother such that he no longer needed to make any such payments from 31 May 2017.[11] Therefore, the Agency requested the Mother repay child support she had received in the amount of $17,130.38.[12]

   [10] Ibid., pages 167-171. 

   [11] Ibid.

   [12] Ibid.

8. On 21 February 2022, the Mother objected to the Agency’s decision to change her percentage of care from 100% to 0%.[13] The Mother relevantly stated that the Agency had been provided with incorrect information regarding her residential address, which had led to the decision to change the percentage of care she had for the Child.[14]

   [13] Exhibit 1, T38, pages 188-190.

   [14] Ibid.

9. On 20 May 2022, the Agency allowed the Mother’s objection and found that there was no change to her percentage of care from 31 May 2017. That is, the Agency found that the Mother had 100% care of the Child from this time.[15] The Agency’s child support assessment records provided to the Mother and the Father, and that were before the Tribunal, demonstrate that the care percentage used to determine child support has remained 100% for the Mother and 0% for the Father from January 2018 to present.[16]

   [15] Exhibit 1, T52, pages 211-265.

   [16] Ibid.

10. On 23 May 2022, the Father applied to the AAT1 for review of the aforementioned Agency decision that the Mother had 100% care of the Child from 31 May 2017.[17]

    [17] Exhibit 1, page 266.

11. On 16 August 2022, the AAT1 set aside the Agency’s decision and substituted it with a decision that neither parent had any care of the Child from 31 May 2017. That is, they each had 0% care and that a ‘child support terminating event’ occurred on that date.[18] The AAT1 found that the Child had left the Mother’s care at the latest on 31 May 2017 and has been in the care of her maternal grandparents since that date.[19]

    [18] Exhibit 1, T1, pages 4-11.

    [19] Ibid., page 10.

12. On 8 September 2022, the Mother applied to the Tribunal for review of the AAT1 decision.[20]

    [20] Exhibit 1, T1, pages 1-46.

13. On 30 March 2023, the Tribunal held a hearing by the videoconferencing facility, Microsoft Teams. The Mother did not attend, but was represented by her father, the Child’s maternal grandfather. The Father did attend the hearing and was represented by Ms Amarlie Dent. The Respondent, the Child Support Registrar (Registrar), was also represented by Mr Matthew Sheedy. While the Registrar provided detailed submissions in relation to the facts and applicable legislation in the proceeding, it adopted a neutral position regarding the evidence and contentions of the Father and the Mother and made no submissions or contentions on the correct or preferable decision of the Tribunal. The Tribunal records its appreciation for the assistance it received from the Registrar and its legal representative through the Registrar’s submissions and during the course of this proceeding.  

14. The Tribunal has considered all documents in the two bundles of documents lodged on 2 November 2022 and 19 December 2022, respectively, pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act).[21] The written and verbal submissions made by the parties have also been considered in preparing these reasons.

    [21] Exhibits 1 and 2. For completeness, the Tribunal also took into evidence, as Exhibit 3, the bundle of documents provided by the Father’s representative on 19 February 2023, all of which were contained in Exhibit 1.

    LEGISLATION & POLICY

15. Section 35 of the Assessment Act sets out the applicable formula to determine the rate of child support payable for the Child. Step 4 in the formula is to ‘Work out each parent’s percentage of care for the child’. The determination of the percentage of care for a child during a care period can be made under sections 49 or 50 of the Assessment Act, depending on whether there has been a ‘pattern of care’ for the child provided by a ‘responsible person’, being a parent or non-parent carer. There was no dispute that the Father had no care of the Child from May 2017. The dispute concerns whether the Mother had any care of the Child and, if so, to what extent.

16. Under section 49 of the Assessment Act, if the Registrar is satisfied that a responsible person for the child has had, or is likely to have, no pattern of care for the child during the relevant care period, the percentage of care must be 0%. Under section 50 of the Assessment Act, the Registrar must be satisfied that the responsible person has had, or is likely to have a pattern of care for a child during the relevant care period that it ‘considers to be appropriate having regard to all the circumstances’. Subsection 50(3) of the Assessment Act provides that any percentage of care determination must be a percentage that corresponds with the ‘actual care’ of the child that the Registrar is satisfied the responsible person ‘has had, or is likely to have, during the care period’.

17. Subsection 54A(1) of the Assessment Act provides that the ‘actual care’ of a child that a person ‘has had, or is likely to have, during a care period may be worked out based on the number of nights that the Registrar is satisfied that the child was, or is likely to be, in the care of the person during the care period’. However, the Child Support Guide, at paragraph 2.2.1, advises that, where there is doubt about the extent of care a person is providing for a child, the Registrar will consider the following:[22]

    [22] Exhibit 2, ST1, pages 468-469.

    ·     To what extent the person has control of the child, including having overall responsibility for the child and making:

    omajor decisions relating to who the child spends time with and the child's health, education, discipline, recreational and/or social activities, and

    oarrangements for others to meet the needs of the child (delegated care).

    ·     To what extent the person meets the needs of the child by providing the child with accommodation, clothing, food, child care, education, health care, emotional support, supervision, transport and extra-curricular activities.

    ·     To what extent the person pays for the costs of meeting the needs of the child.

    ·     To what extent the person otherwise provides financial support for the child.

    ·     To what extent the child provides for his or her own needs or has those needs met from another source.

    ·     To what extent the child is financially independent or financially supported from another source.

18. The Tribunal notes that, while not binding, government policy, such as the Guide, should generally be applied unless there are cogent reasons not to do so.[23] The Tribunal is not aware of any reasons for it to not apply the Guide and the parties did not make any submissions in this regard.

    [23] P v Child Support Registrar [2012] FCA 1398 at [3]; see also Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

19. While the Assessment Act does not specify any fixed duration, the ‘care period’ is regarded as the period during which a responsible person for the child has had, or is likely to have, a pattern of care or no pattern of care for the child. In this regard, the Guide at paragraph 2.2.1 states that: ‘A care period is generally a 12-month period from the day on which the actual care of a child began or changed (the date of event). The same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised’.

20. For completeness, the Tribunal notes that, pursuant to subsections 96A(b) of the Child Support (Registration and Collection) Act 1988 (Collection Act), an application may be made to the General Division of the Tribunal for review of a care percentage decision by the AAT1. The Tribunal therefore has jurisdiction in relation to the Mother’s application for review of the AAT1 decision that there was a change in the Mother’s percentage of care of the Child from May 2017.

    EVIDENCE

    The Father

21. The Father did not give evidence at the Tribunal hearing and it was acknowledged on his behalf that he did not have any care of the Child from May 2017.

22. On 21 January 2022, the Father’s solicitor provided the Agency with a letter regarding interviews conducted on 16 November 2021 for the purpose of preparing a ‘Family Report’ for proceedings in the Federal Circuit and Family Court of Australia.[24] The Tribunal notes that, under section 62G of the Family Law Act 1975 (Family Law Act), the Court ‘may direct a family consultant to give the court a report on such matters relevant to the proceedings as the court thinks desirable’. Pursuant to subsection 11C(1) of the Family Law Act, evidence of anything said, or any admission made, by or in the company of a family consultant is admissible in proceedings under that Act. Additionally, a note to that provision states that it ‘does not prevent things said or admissions made by or in the company of family consultants from being admissible in proceedings other than proceedings under this Act’. Moreover, under section 33 of the Administrative Appeals Tribunal Act 1975, the Tribunal is not bound by the rules of evidence and may inform itself on any matter in such manner as it considers appropriate. As a result, for completeness, and noting that this letter was before the AAT1, the Tribunal took the document into evidence and sets out the relevant features as follows. The letter from the Father’s solicitor stated that during the interviews for the preparation of a Family Report on 16 November 2021, the following information was provided:[25]

    (a)the Mother lives in another regional town to that of the Child;

    (b)the Child ‘has not consistently lived with her mother’ since 2017, ‘rather that she has primarily lived with the maternal grandparents’;

    (c)there is ‘no clear evidence how much time [the Child] is spending with her mother’ in the other regional town;

    (d)the Mother proposed that the Child ‘continue to reside with her grandparents’, where she has lived ‘for around four years’ and ‘was happy’;

    (e)the partner of the Mother’s father stated that the Mother does see the Child on ‘a regular basis but was not specific about details’;

    (f)the Child stated that she lives with her grandparents and she ‘likes seeing her mother but said she does not see her mother very often’.

    [24] Ibid., pages 163-164.

    [25] Ibid.

23. In July 2022, the Father’s solicitor requested leave from the Court to provide the Tribunal with the ‘Family Report’ in the aforementioned proceedings involving the Mother and the Father.[26] The Court declined to do so and that document was not before this Tribunal.[27] 

    [26] Exhibit 1, page 25.

    [27] Ibid., page 26.

24. On 13 April 2022, the Father’s solicitor wrote to the Agency and contended that a receipt from the Child’s school ‘is not evidence that the Mother was financially supporting the child’, ‘there is no evidence that the money was provided by the Mother ie bank statements’, and the receipt is made out to the Mother ‘as she is the parent of the child only’.[28] It also contended that fee statements from a children’s centre are ‘not evidence that [the Mother] has paid the fees and been financially responsible for [the Child]’.[29] While it was conceded that the statements demonstrated that the Child resided in the regional town at the address of her maternal grandparents, the Father’s solicitor submitted that they do not ‘confirm that the mother was present and residing in [the town] and caring for the child’.[30] The Father further submitted that an Apprehended Domestic Violence Order (ADVO), made by the Local Court of NSW on 6 December 2018, cannot be relied upon as evidence that the Mother cared for the Child, and the Affidavit from the partner of the Mother’s father dated 31 August 2020 stated that the Mother was either ‘not here’ or ‘not home’ on certain dates between April and July 2020.[31] It was also noted that subpoenaed records from the Mother’s general practitioner, that were not before the Tribunal, disclosed that the Mother had last attended the practice in-person in January 2019, attended by telephone in April and July 2019, and had no contact with the doctor since that last appointment.[32] Additionally, the letter referred to the Mother on 16 April 2021 attending a pathologist in another regional town in NSW and providing an address in that town, said to be her current address, rather than the residential address of her father, his partner and the Child.[33]

    [28] Ibid., page 205.

    [29] Ibid.

    [30] Ibid.

    [31] Ibid., pages 205-206.

    [32] Ibid., page 206.

    [33] Ibid.

25. On 24 April 2022, the Father’s solicitor provided another letter to the Agency regarding notes from an interview in late February 2022 between the partner of the Mother’s father and the organisation, ‘Interrelate’, to arrange supervised contact in relation to the Child.[34] These notes were said to state that the Child ‘is living with’ her maternal grandparents, the Child ‘has basically resided with [them] since birth aside from a short period of time when [the Mother] lived with [the Father] (about 4 months)’ and as ‘the primary carers, [the maternal grandparents] will be bringing [the Child] for contact with the [Father’s] family’.[35] The letter also stated that the partner of the Mother’s father ‘advised that she is not working as she is the full time carer’ of the Child.[36] The Father’s solicitor confirmed that he maintained ‘his position that the child remains residing with the grandparents, without the Mother and the grandparents are the primary carers and financial support for the child and not the mother since 2017’.[37]

    [34] Ibid., page 208.

    [35] Ibid.

    [36] Ibid.

    [37] Ibid.

    The Mother

26. The Mother did not give evidence to the Tribunal.

27. The Mother’s father represented her at the Tribunal hearing and also gave evidence. A joint written statement dated 20 February 2022 from the Mother’s father and his partner relevantly stated that the Mother:[38]

    (a)‘has resided with us since [s]he parted from’ the Father on 20 December 2016;

    (b)in January 2017, rented a home in the same regional town in New South Wales (NSW) where they reside;

    (c)‘moved back to our home’ on or around 9 May 2017;

    (d)has ‘remained here except for short stays and visits to another partner’ and ‘various friends’;

    (e)obtained work in, and moved to, another regional town in NSW in early February 2022.

    [38] Exhibit 1, page 12.

1. On 19 August 2022, the Mother’s father provided a response to certain paragraphs of the AAT1’s decision of 16 August 2022.[39] He stated, in response to the note that no further evidence was received pursuant to a direction for compliance by 12 August 2022, that the Mother had uploaded copies of her bank statements ‘from December 2021’ to the Agency’s portal ‘as these are the only statements relevant as any payments for [the Child] prior to this was made by [the Mother] [h]erself as she lived here with us’.[40] The Mother’s father also contended that both the Mother and the Child ‘have lived with us’ and that they ‘live here’.[41] The Mother’s father disagreed with the AAT1’s finding that the Child did not live with the Mother as ordered by the Court on 10 December 2020 and stated that the Child ‘did live with her mother’ in the same regional town.[42] The Mother’s father further stated that the Mother, together with the Child, has lived with him and his partner ‘except for short term stays in other places, but at the same time [the Mother] was always the decision maker and paying parent for [the Child]’.[43] In relation to the Mother attending a pathologist in April 2021 in a different regional town and providing an address in that location, the Mother’s father stated that this was done because she ‘could not get in anywhere else’ and told the Tribunal that the address was provided because the Mother thought she had to reside in that area to receive the medical service. He did not dispute that the Mother ‘occasionally’ went to this town to visit her partner, although this was said to be for a few days and ‘very little’. The Mother’s father again did not dispute that she had moved to that regional town in early February 2022 and before this time she was there ‘for a job interview’,[44] with the accompanying email attachment seeking to arrange the interview being dated ‘2 Feb’.[45] Finally, the Mother’s father stated that she ‘has always been the supporting parent and paying parent as there is no way we as grand parents could afford to raise’ the Child.[46]

   [39] Ibid., pages 267-268.

   [40] Ibid., page 267. 

   [41] Ibid.

   [42] Ibid. See also page 9.

   [43] Ibid.

   [44] Ibid., page 268.

   [45] Ibid., page 270.

   [46] Ibid., page 268.

2. The Mother’s father told the Tribunal that the Mother had, since May 2017, predominantly resided with them and the Child until early 2022, and acknowledged that for a time she resided elsewhere. When asked about evidence from the Father’s sister that she saw the Mother on three occasions in another regional NSW town in late 2021, he again told the Tribunal that the Mother would occasionally, and for a few days, visit her partner but remained at their residence with the Child. He maintained that, although he and his partner as the Child’s grandparents contribute to the Child’s clothing, the Mother has always been the primary carer of the Child, maintained ‘full control’ of the Child and made ‘all of the decisions’ regarding the Child, and ‘still does’. For example, he told the Tribunal that the Mother attended meetings with the Child’s school and other related events.

   CONSIDERATION

3. The task of the Tribunal in this proceeding is to determine the percentage of care the Mother had of the Child from May 2017, now almost six years ago. The Child was then one year old. As previously stated in these reasons, the Father does not dispute that he has had no care of the Child since May 2017. Accordingly, the relevant care percentage determination made in January 2018 was that, from 30 May 2017, the Father had 0% care of the Child and the Mother had 100% care of the Child.[47] Based on the evidence before the Tribunal, the Father therefore had very little involvement with the Child and knowledge of associated caring arrangements since 2017. This determination remained unchanged up until June 2021 when the Father informed the Agency of a claimed change in the Mother’s percentage of care for the Child from 100% to 0% from 31 May 2017.[48] This was based on statements said to have been made by various people in the course of family law proceedings in 2021, some four years after the claimed change in care arrangements for the Child. As a result of the Father’s claim that the Mother’s care of the Child had reduced from 100% to 0%, in February 2022, the Agency decided that the Mother’s percentage of care for the Child was 0%.[49] In May 2022, following the Mother’s objection to that decision, the Agency found that the Mother’s care percentage was 100%.[50] In August 2022, after the Father disputed this finding, the AAT1 decided that the Mother’s care percentage was 0%.[51]

   [47] Exhibit 1, pages 76-85.

   [48] Ibid., page 279.

   [49] Ibid., page 170.

   [50] Ibid., page 212.

   [51] Ibid., pages 47-54.

4. For the following reasons, the Tribunal is satisfied that the existing care determination should not be revoked. That is, on the available evidence, the Tribunal finds that the Mother had 100% care of the Child from May 2017. The Tribunal is satisfied that he Mother is the primary decision-maker with overall responsibility for the Child.  

5. In order to make a determination of percentage of care in accordance with section 50 of the Assessment Act, the Tribunal must be satisfied that the Mother has had a ‘pattern of care’ for the Child during the care period. The term ‘pattern of care’ is undefined and can be interpreted according to its ‘ordinary meaning’.[52] Under subsection 50(3) of the Assessment Act, the percentage of care for the child during a care period must be a percentage that corresponds with the ‘actual care’ of the child that the Registrar (or here, the Tribunal) ‘is satisfied that the responsible person has had’ during the care period. For the avoidance of doubt, the Tribunal is satisfied that the Mother had a pattern of care for the Child from May 2017. Accordingly, section 49 of the Assessment Act, which applies if there is ‘no pattern of care’, is not relevant in this proceeding.

   [52] Parent 1 and Child Support Registrar and Parent 2 [2013] AATA 562 at [33].

6. As previously stated, a ‘care period’ does not have any fixed duration and the Guide provides that it is ‘generally a 12 month period from the day on which the actual care of a child began or changed’.[53] The care period does not necessarily have to be based on the calendar year or the average care provided by a parent during a particular period of time, such as school holidays. The Guide further provides that the same care arrangements will be assumed to apply for the subsequent 12-month period, unless otherwise advised.[54] The Tribunal is satisfied, on the available evidence, that the actual level of care provided by the Mother did not change in the 12 month period from 31 May 2017 and that the relevant care period is the 12 month period from 31 May 2017. 

   [53] Exhibit 2, page 470.

   [54] Ibid.

7. That care period is now in the past and the Tribunal is required to make a retrospective care determination. In accordance with the Assessment Act, the Tribunal considers that the correct approach is to make a determination of what care actually occurred during the relevant care period. The Tribunal in Frampton and La Ponder [2015] AATA 321 explained why it is preferable to make a determination of what care actually occurred during the relevant care period, as follows:[55]

   Care decisions are generally predictive in nature, given the period to which they apply at the time they are made. However, where, as is the case here, evidence of the “actual care” provided by the parents of the child in the relevant care period is available (i.e. because the relevant care period has already passed), the Tribunal should have regard to the “actual care” that was provided during the period under review: see Shi v Migration Agent Review Authority [2008] HCA 31. In Shi, the High Court held that it was open to the Tribunal to take into account conduct and events that occurred after the original decision was made, and that the Tribunal was not confined to the evidence that was before the original decision-maker, unless the legislative scheme requires the decision to be made by the Tribunal with reference to a particular point in time.

   [55] Frampton and La Ponder [2015] AATA 321 at [54]-[58].

8. The Child Support Guide provides policy guidance to those making decisions under the applicable legislation and refers to the need where doubt exists for the following matters to be considered:[56]

   An object of the CSA Act is 'that persons who provide ongoing daily care for children should be able to have the level of financial support to be provided for the children readily determined without the need to resort to court proceedings' (section 4(2)(c)). The CSA Act does not define the term 'ongoing daily care', however the Registrar will take into account a number of factors in determining whether a person cares for a child.

   [56] Exhibit 2, page 468.

9. As set out in the Guide and previously in these reasons, where there is doubt about whether and to what extent a person is caring for a child, the Registrar (or here, the Tribunal) will consider a number of relevant matters.[57]

   [57] Exhibit 2, pages 468-469. See also Polec v Staker & Anor (2011) 253 FLR 339 at [56].

10. The Child in this proceeding is now seven years old and therefore neither provides for their own needs nor for their financial independence. Accordingly, the Child must have been in someone’s care from May 2017, and remain so at this time.

11. The Guide provides that, in limited circumstances, ‘a person may have care of a child who is not living with them for a period of time’.[58] One example provided in the Guide is where a person provides care for a child who is in ‘separate accommodation’, and the Guide also relevantly notes that a person who is simply supervising the child, such as a grandparent, does not provide care.[59] The Guide further notes that consideration is given to ‘who has responsibility for making arrangements for, and decisions about, the child’s welfare, as well as who is meeting the child’s costs, rather than just the accommodation arrangements themselves’.[60]  

    [58] Exhibit 2, page 472.

    [59] Ibid.

    [60] Ibid.

12. The Mother contended that she had 100% care of the Child from May 2017, from which time she and the Child were living with her father and his partner. The Father contended that the Mother did not live at the same residential address as the Child from May 2017. In addition to the evidence set out above in these reasons, the documentary evidence before the Tribunal was as follows:

    (a)A Medicare card listing both the Mother and the Child, but with the date of its validity redacted.[61]

    [61] Exhibit 1, page 191.

    (b)An undated email from a real estate agent confirming that the Mother had secured a rental property, not being the residence of her father, his partner and the Child, for a period of six months.[62] This was the same address the Mother’s father told the Tribunal his daughter had resided in from 6 January to 9 May 2017, until she ‘moved back to our home’.[63]

    [62] Exhibit 1, pages 192-194.

    [63] Ibid., page 12.

    (c)The Mother made a witness statement to police in early November 2018 at the same regional NSW town where the maternal grandparents reside and where it was claimed she also lived with the Child.[64]

    [64] Exhibit 1, pages 16-21.

    (d)On 6 December 2018, the ADVO was made in relation to the Father, which relevantly ordered him not to approach or contact the Mother and the Child.[65] The ADVO ended on 5 December 2020.[66]

    [65] Ibid., pages 13-15.

    [66] Ibid., page 13.

    (e)The Mother provided the Tribunal with two fee statements from April and July 2019 from a community children’s centre in the regional NSW town where the Child resides, which were issued to the Mother at the same residential address as the Child.[67] A ‘Statement of Entitlement’ from the same children’s centre issued to the Mother on 18 August 2020 also listed the same residential address.[68]

    [67] Exhibit 1, pages 95-96.

    [68] Ibid., page 108.

    (f)The Mother made another statement to police in March 2020 at another regional NSW town, not the one she currently resides in, in which she gave her residential address as being that of her father and his partner.[69]

    (g)An Affidavit made by the Father’s mother on 15 July 2020 in a separate Court proceeding set out telephone communication she attempted with the Child between April and July 2020.[70] The Father’s mother stated that, on eight occasions between this time, she heard the Mother in the background of these telephone calls at the place the Child resides.[71] However, an Affidavit made by the partner of the Mother’s father dated 31 August 2020 stated that on these occasions the Mother either ‘was not home’ or ‘was not here’, and further stated that she was ‘not at home on Wednesday night’, which was when these calls occurred.[72] The Mother’s father told the Tribunal at the hearing that the Mother was working locally at the time of these calls, although she lived with them at their residence.

    (h)In November 2020, a document titled ‘Response to an Application in a Case’ in the then Federal Circuit Court of Australia was filed by the Mother, which listed her address for service as being that where the Child resided with her maternal grandparents.[73] The accompanying ‘Annexure A’, an Affidavit made by the Mother, in or around November 2020, also provided the same address.[74] In that document, the Mother relevantly stated that, when the Father’s mother rang to speak to the Child during the aforementioned period set out above, she was ‘at a friends [sic] place and not a[t] home’.[75] 

    (i)On 13 November 2020, the Child’s school, located in the same regional town as where she lived with her maternal grandparents, issued a receipt to the Mother for payment associated with a uniform, recorded as having been received from the Mother.[76]

    (j)On 10 December 2020, the then Federal Circuit Court of Australia ordered that the Mother have ‘sole parental responsibility’ for the Child and that the Child ‘shall live with her mother’.[77] The order listed the Mother’s address as being that of her father and his partner, being the address at which the Child resides.[78]

    (k)On 16 February 2021, the Child’s school issued a receipt to the Mother for payment of a voluntary contribution, recorded as having been received from the Mother.[79]

    (l)On 1 March 2021, the Child’s school issued a receipt to the Mother for payment in relation to an excursion, recorded as having been received from the Mother.[80]

    (m)On 2 June 2021, the Child’s school issued a receipt to the Mother for payment associated with a uniform, recorded as having been received from the Mother.[81]

    (n)The Father’s sister provided a statement to the Agency that she had seen the Mother in a regional NSW town, that was not the one where the Child was residing, on three dates in each of November 2021, February 2022 and March 2022.[82] The Mother does not dispute that she moved to this other town in February 2022 and was not living predominantly with the Child from that time. The Mother’s father told the Tribunal the Mother would occasionally visit her partner in this other town, but remained living with them and the Child up until early February 2022.

    (o)On 6 May 2022, the Mother provided a letter to the Agency confirming that her father and his partner ‘are helping me care for [the Child]’, whom she is ‘financially supporting’ when not in that town because her work is based in another regional town in NSW and ‘so I travel back and forth’.[83]

    [69] Exhibit 1, pages 22-24.

    [70] Exhibit 1, pages 100-104.

    [71] Ibid.

    [72] Ibid., pages 112-113.

    [73] Ibid., pages 126-127.

    [74] Ibid., page 128.

    [75] Ibid., page 128.

    [76] Ibid., page 130.

    [77] Ibid., pages 131-135.

    [78] Ibid., page 132.

    [79] Ibid., page 136.

    [80] Ibid., page 137.

    [81] Ibid., page 138. 

    [82] Ibid., page 32.

    [83] Ibid., page 210.

13. Plainly from the aforementioned evidence, the Tribunal did not have any records detailing the claimed number of nights the Child was in the Mother’s care. The totality of the independent evidence was insubstantial and did not relate to a twelve month period of care from May 2017. However, having regard to the available evidence, the Tribunal is satisfied that the Mother retained 100% care of the Child from May 2017. That is, the Tribunal finds that the Mother had primary care of the Child and has been responsible for meeting the costs of the Child from May 2017.

14. As previously set out in these reasons, in June 2021, the Father contended that the Mother had not been living at the same residential address as the Child since May 2017, some four years earlier. Based on the material that was before the Tribunal, there was no independent documentary evidence that the Mother either did, or did not, live with the Child at the same residential address, being that of her father and his partner, from May 2017 and the following 12 months. However, the Tribunal gives the Mother the benefit of the doubt, based on the available evidence after this period of time, which points to a finding that the Mother lived at the same address as the Child until approximately early February 2022, almost five years later.

15. The earliest independent documentary evidence of the Mother’s residential address was from two fee statements issued to the Mother by a children’s centre in relation to the Child in April and July 2019, approximately two years after the change in care was claimed by the Father to have occurred. The centre was in the same regional NSW town where the Child was accepted to be living and the statements are addressed to the Mother at the same residential address as that of the Child.[84] Moreover, material relied upon by the Father in a Court proceeding and referred to by his solicitor, but which was not before the Tribunal, disclosed that the Mother last physically attended her general practitioner in January 2019, almost two years after the claimed change of care, and attendances in April and July 2019 were by telephone, with no further contact. The Tribunal gives this evidence, referred to but not sighted, minimal weight and does not consider that it demonstrates the Mother had permanently moved to another town or address and did not have care of the Child.

    [84] Exhibit 1, pages 95-96.

16. The children’s centre also issued a Statement of Entitlement to the Mother at the same residential address as the Child in August 2020, being more than three years after the care arrangements for the Child were claimed to have changed.[85] Moreover, around this time, between April and July 2020, the Father’s mother claimed to have heard the Mother at the same residential address as the Child on approximately eight occasions when she had telephoned and was waiting to speak to the Child.[86] That is, the evidence from the Father’s mother was that the Mother of the Child was at the same residential address as the Child don each of those occasions she telephoned to speak to the Child in mid-2020. While the partner of the Mother’s father also made an Affidavit in separate proceedings stating that the Mother either ‘was not home’ or ‘was not here’ when these telephone calls occurred, the Mother in her Affidavit for those proceedings, made in or around November 2020, stated that she was at a friend’s house and ‘not a[t] home’ when these calls were made.[87] Importantly, there was no evidence that the Mother was not residing at this address in mid-2020. A Court document filed by the Mother in November 2020 listed her address as being the same as that of the Child.[88] In the same month, the Child’s school issued a receipt for payment of a uniform item received from the Mother.[89] Furthermore in November 2020, the then Federal Circuit Court of Australia ordered that the Mother have ‘sole parental responsibility’ for the Child and that the Child ‘shall live with her mother’.[90] The order listed the Mother’s address as being that of her father and his partner, which is the address at which the Child resides.[91] There was no independent evidence before the Tribunal that the Mother was not the person primarily responsible for the Child during the period from May 2017 to the end of 2020. There was also no independent evidence that the Mother did not comply with the Court order that she have sole parental responsibility for the Child or that the Child live with the Mother. Accordingly, in the Tribunal’s view, there was no satisfactory evidential basis to find that the Child did not live with the Mother. The Tribunal finds that the weight of evidence indicates that the Mother remained at the same residential address as the Child in 2020, being more than three years after the claimed change of care of the Child.

    [85] Ibid., page 108.

    [86] Ibid., pages 100-104.

    [87] Ibid., pages 112-113 and 128.

    [88] Ibid., page 128.

    [89] Ibid., page 130.

    [90] Ibid., pages 131-135.

    [91] Ibid.

1. Between February and June 2021, the Child’s school issued receipts for various payments received from the Mother.[92] While there was no other evidence that the Mother made these payments, such as bank statements identifying payment from the Mother to the school, the Tribunal finds that these receipts indicate that the Mother was responsible for the Child’s schooling and financial arrangements, including making payment for uniforms, an excursion and voluntary contributions. In this regard, there was no independent evidence before the Tribunal that the Mother was not the person responsible for these arrangements. While the Father submitted that this did not demonstrate that the Mother was financially supporting the Child, paid the school fees, was caring for the Child or residing at the same address, there was also no evidence to the contrary, whereas there was some evidence, albeit minimal, that the Mother was the person responsible for these matters and caring for the Child at this time. The receipts were issued to the Mother at the same address as the Child. While acknowledging that they do not establish that the Mother lived at that address, the Tribunal finds, on balance, and in the absence of evidence to the contrary, that they indicate that the Mother did indeed live at that address and, at the least, had control of the Child. Accordingly, the Tribunal finds that the Mother had primary care of the Child into at least mid-2021, being more than four years after the claimed change of care in May 2017.

   [92] Ibid., pages 136-138.

2. The only independent evidence of the Mother potentially residing at a different address and regional town to that of the Child was a reference in the Father’s solicitor’s submissions to her attendance at a medical appointment in a different town in April 2021, where she provided her partner’s residential address in that regional town and not that of her father, where the Child resides. The Mother, through submissions made by her father, did not dispute that she attended this appointment, but contended that she gave this address because she did not think she could attend the appointment in that town without a local address. The address was said to be that of her partner, where she ‘stayed occasionally’. Based on the available evidence, the Tribunal gives the Mother the benefit of the doubt that she was not permanently residing at this address. More importantly, it does not demonstrate that the Mother did not retain 100% care of the Child at this time. As stated, this was the only piece of independent evidence available to the Tribunal that contained a different address for the Mother from the period May 2017 to February 2022.

3. The Father’s sister’s statement to the Agency that she saw the Mother in another regional town on three occasions in November 2021 and then in February and March 2022 is given little weight by the Tribunal. She did not give evidence at the hearing and plainly is supportive of her brother, the Father, and his contention that the Mother no longer cares for the Child. Moreover, the Mother, and her father, did not dispute that she visited her new partner in that other regional NSW town during this time and that she moved from the same residence as the Child to that regional town for work from early February 2022. The Tribunal accepts this evidence. The Mother’s most recent evidence, from May 2022, was that her father and his partner are ‘helping me’ care for the Child, whom the Mother is financially supporting when she is not in the same town, because her work is based elsewhere and she travels ‘back and forth’.[93] There was no evidence in relation to the amount of time that the Mother spends in either regional town, but the Tribunal accepts, because of the lack of evidence to the contrary, that the Mother remains the primary carer for the Child. That is, the Mother is financially supporting the Child, is involved in her schooling, and makes caring arrangements regarding the Child, with her father and his partner, the Child’s maternal grandparents, supervising the Child when the Mother is not physically present at the same location.  

   [93] Ibid., page 210.

4. The Tribunal turns to consider the Father’s solicitor’s submissions regarding information said to have been disclosed during the interviews for the Family Report conducted in mid-November 2021 for family law proceedings.[94] The submissions contained an account of what was purported to have been said during the interviews about care of the Child. However, it was unclear to the Tribunal, based on a reading of the submissions, to whom certain alleged statements are attributable from these interviews. For example, the letter from the Father’s solicitor states that the information from the interviews in mid-November 2021 was that the Mother resides in another regional town, but the source of this claimed statement is not apparent. In addition, the letter states that information was provided that the Child ‘is currently living with her maternal grandparents’ and ‘has not consistently’ lived with the Mother ‘since 2017’, but has ‘primarily lived with the maternal grandparents’. Again, it was unclear who made this alleged statement. Moreover, the partner of the Mother’s father apparently stated that the Mother ‘does see’ the Child ‘on a regular basis but was not specific about any details’. This does not take the matter much further than drawing a conclusion that the Mother potentially was, from in or around November 2021 when the interviews were conducted, travelling between the two relevant regional towns due to work and a relationship. This, incidentally, accords with the Father’s sister’s purported sighting of the Mother on three occasions in that other town in November 2021, but not any earlier, given there is nothing mentioned in this regard. Moreover, the Child allegedly stated at these mid-November 2021 interviews that she ‘likes seeing her mother but said she does not see her mother very often’.[95] This also accords with a conclusion that the Mother was not permanently residing with the Child from in or around November 2021, but not, in the Tribunal’s view, that she was not the primary carer of the Child at that time. While acknowledging the unsatisfactory state of the evidence before the Tribunal, and to the extent required, the Tribunal again notes that it is satisfied, based on the evidence, that the Mother had 100% care of the Child from May 2017 and in November 2021, being four and a half years since the claimed change in care from May 2017. 

   [94] Exhibit 1, pages 163-164.

   [95] Ibid., page 164.

5. While the available evidence before the Tribunal was minimal, as demonstrated in these reasons, the evidence in support of the Father’s position that a change of care of the Child occurred from May 2017 was simply insufficient and largely relied on what was said to have been disclosed by unidentified people at a Court ordered session in mid-November 2021 regarding the alleged care arrangements for the Child. As set out above, the Tribunal is not satisfied that this is sufficient to make a finding that the Mother’s care of the Child changed from 100% to 0% from May 2017. While the Child has been living with her maternal grandparents, on all of the available evidence, the Tribunal is not satisfied that it is open to find that the Mother has not had 100% care of the Child from May 2017.

6. For completeness, the Tribunal also notes that the Guide provides that where the Registrar cannot determine what percentage of care each parent or carer is likely to have over the relevant care period, it will be assumed that the state of affairs known to it at the time of the existing care determination was made is continuing. The Tribunal has found that there was no change in the Mother’s percentage of care for the Child from May 2017. Accordingly, the existing care determination cannot be revoked and the child support assessment will not be amended. The Tribunal is satisfied, on the available evidence, that the Mother’s care of the Child remained 100% during the care period from May 2017. This care percentage is the same as the existing determination made in 2018, whereby the Father had 0% care and the Mother had 100% care of the Child.

   DECISION

7. Pursuant to subsection 43(1)(c) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and makes a decision in substitution not to revoke the existing care determination for the Child. That is, the Tribunal finds that the Mother had 100% care of the Child from 31 May 2017.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

..................................[SGD]......................................

Associate

Dated: 5 April 2023

Date(s) of hearing:	31 March 2023
Date final submissions received:	9 December 2022
Applicant’s Representative:	By MS Teams
Solicitors for Respondent:	Mr Matthew Sheedy, Sparke Helmore Lawyers
Solicitors for Other Party:	Ms Amarlie Dent, Central West Legal